The principle of natural justice, which is fundamental to good governance, should underpin every council decision.
Natural justice is a doctrine which seeks to protect those affected against arbitrary exercise of power by ensuring fair play. It’s particularly relevant to decisions which clearly affect individuals’ rights, for example planning permit applications.
THE RULES OF NATURAL JUSTICE
There are two fundamental rules for natural justice:
- all sides of an argument should be given a fair opportunity to be heard before a decision is made
- the decision maker must not have predetermined the matter or be perceived as having predetermined the matter.
IMPLICATIONS FOR LOCAL GOVERNMENT
The principles of natural justice have implications for all councillors. Regardless of their political views, councillors must ensure that they consider all the available arguments and information before finally making up their minds on an issue.
Councillors must be able to demonstrate that they are ‘capable of being persuaded’ by the advice they receive. This doesn’t mean, however, that they must follow the advice. Instead they must, at the very least, be able to demonstrate that they have considered it.
Councillors must also adhere to conflict of interest requirements as set out in the Local Government Act 1989. This is a legal requirement.
Local Government Victoria’s publication, Ensuring Unbiased Democratic Council Decision Making is a useful guide.
WHEN IS A PERSONAL OPINION OKAY?
Natural justice shouldn’t prevent councillors from having opinions on upcoming matters and stating their views during election campaigns. Having a view on something doesn’t mean that a councillor is incapable of delivering on natural justice doctrines. They just need to ensure that they will impartially consider the evidence and advice, which may or may not support their view, during the formal decision-making process.
When councillors give the impression that they will never change their views on an issue regardless of the evidence or advice, they are at severe risk of breaching the natural justice doctrine. In such cases, the council decision is then at risk of being set aside by a court or tribunal.